Slavery was illegal under English common law

The left tells us that black slavery is unique to Anglo-Saxon culture. But the reality of the matter is that slavery was always illegal in its motherland, England. How so?

Going back to 1215, start with the fact that England became a unique nation in the world around the issue of individual rights.

That began with the Magna Carta, which established for the first time that a king, in this case, the hated King John, was forced to admit he did not have absolute power. It may have been at the proverbial end of a sword and broken soon after by King John, but he was the one who marked the wax and was carried through by every king and queen to follow with some ignoring their limitation at great cost to them.

It should have rippled throughout Europe to other powerful lords who wanted the power the English barons gained, instead it remained localized to England. After King John’s defeat by the barons, others of equal rank should have followed. Outside Britain, it never went anywhere.

There was a ripple that did happen, but not throughout Europe, and not immediately realized. It was a ripple through time that led to English Common Law being written. It was a system of laws that bound everyone. The Magna Carta started with the limiting of kings and queens who ruled Britain. It spread to other royals who could not claim they had absolute power when not even a king or queen could make that claim.

No one was above English Common Law throughout Britain. If not even a king or queen had absolute power, no one did.

In order for any British colony to legally exist, Common Law was required by London. It was the reason representative governments were set up, whether the powerful governors liked it or not. Any governor could be removed and replaced by London for any number of reasons, including dragging his feet on the matter of installing representative government.

Outside Common Law were various codes backed by various crowns and high-ranking people. Due to Common Law being the law of the land, the codes were not lawful. The only thing considered lawful was what was written in Common Law.

The codes were an attempt to bypass Common Law. They had no legal standing in the courts. For something to be legal, it had to be included in Common Law.

Slavery was one of those issues that was included in the code but never added to Common Law. Considering the penchant of peasants for rising up and killing royals in England, none would dare risk their lives to make slavery legal.

In 1772, Somerset v Stewart was heard by Lord Mansfield, the presiding judge in that case. It makes for an interesting case of code versus Common Law because it was dealing with slave code over what was permissible under the Common Law.

From History on the Net, The Case of Somerset v Stewart:

“That famous case involved a slave from [J]amaica, James Sommersett, who escaped when his master brought him along on a business trip to England. After he was recaptured, Sommersett was placed in chains aboard a ship that was to take him to Jamaica to be sold. While still aboard the ship, however, Sommersett was brought by habeas corpus before the Court of King’s Bench.”

Lord Mansfield was known for being a stickler with the law. He was not the judge anyone on the side of slave codes wanted sitting in judgment over that case. Without slavery included in Common Law, they had no legal grounds, since codes were not law.

From the UK National Archives, The Somerset Case:

The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law,…It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.”

The positive law Lord Mansfield referred to was something that had to be included in English Common Law. Since there had only been slave codes and never a word about slavery being included in Common Law, the slave codes as a whole were found to be illegal.

Thomas Hobbes had one of the most brilliant legal minds of his day. His book, Leviathan, continues to be studied, despite it being written in 1651. He wrote about what made positive law in his book.

From Britannica, Thomas Hobbes:

In his magnum opus, Leviathan (1651), he wrote that “law in general, is not counsel, but command” and that civil (i.e., positive) laws are “those rules which the common-wealth hath commanded…by word, writing, or other sufficient sign of the will” that certain actions are to be done or not done.

The entirety of English Common Law consisted of positive laws. Positive is not a reference to morally positive, but something that was legal.

Since there were no slave laws included in Common Law, there were no positive laws to support the abhorrent practice. Slavery had no legal foundation to exist anywhere in Britain.

Any law written in a given British colony had to follow Common Law, not codes. Any law passed in a colony that violated Common Law was an illegal law. Slavery should have been stamped out by London the moment a single colony made slavery legal.

The failure of London to act immediately after the first illegal code was written resulted in the horrors of slavery that followed elsewhere. Slavery was a clear violation of English Common Law because it never included slavery as being permissible under any circumstances.

The only legal thing that could be done regarding lifelong servitude was if an indentured servant violated the law, which included running away. A servant, if found guilty of violating any law could have his contract extended for the entirety of the servant’s life. It did happen on occasion and was legally allowed under Common Law.

Lord Mansfield was a rarity in his time and any other. He had the courage of his convictions that English Common Law took precedence over code. He was the Associate Supreme Court Justice Clarence Thomas of his day. Someone who cared about law over everything else.

Bob Ryan is a writer who has an MBA and is a science fiction writer and mostly historical blogger. He has been a weekly blogger at the Times of Israel since 2019. He is an American Christian Zionist who staunchly supports Israel's right to exist as a Jewish state.

Image:, via Flickr // public domain

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